How to Defeat Goliath in a Patent Infringement Battle

For years, Chinese companies have been the targets of patent infringement litigation in the United States. These cases have historically taken two forms: lawsuits filed in one or more of the federal courts located throughout the United States (district courts), or investigations conducted by the U.S. International Trade Commission (ITC) in Washington, D.C.

Although district court cases are well known, litigation at the ITC is known to a smaller audience. The ITC conducts intellectual property investigations under a law known as "Section 337" and has the power to issue orders limiting or eliminating imports into the U.S. market that are found to infringe U.S. patents or other intellectual property rights. In other words, losing a Section 337 case often means losing the ability to import those products into the U.S., and thus losing access to the U.S. market (absent any U.S. manufacturing). Also, the bar set by the ITC is quite low—a patent owner generally only needs to prove that a product (or set of products) infringes one claim of one patent in order to seek such a remedy. Moreover, the timeline at the ITC is fast—most investigations take less than 18 months to complete. Section 337 cases are also popular against non-U.S. entities because there is no "personal jurisdiction" requirement that importers sometimes use to avoid district court litigation; the ITC derives its jurisdiction from the products themselves.

ITC investigations have historically posed a significant competitive threat to Chinese companies